When such an argument is made by the moving party, it is the responsibility of the proponent of the claim or defense to demonstrate to the Court that there is sufficient evidence available from Which a jury might return a verdict in his favor under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. [2505], 91 L. Ed. 2d 202 (1986); Bushman v. Halm, 798 F.2d 651 (3d Cir. 1986).

Moreover, the evidence relied upon must be examined in light of the proponent's evidentiary burden at trial. In other words, the Court is obliged to measure the evidence available to defeat the summary judgment motion against the standard to be applied by the jury at trial, Whether it be preponderance of the evidence, clear and convincing evidence, or some other standard imposed by the substantive law which governs the issue. Id.

Thus, in determining whether there are factual issues for trial, the Court must examine the record in light of the elements necessary to establish the claim or defense in question and in light of the standard under which the jury will be required to consider the evidence. Only those issues essential to the claim or defense can possibly be material and such issues can be in dispute only if the nonmovant can point to sufficient conflict in the evidentiary sources listed in Fed. R. Civ. P. 56(c) and (e) such that a jury's resolution of the issues is required. The nonmovant may not conjure a genuine -- issue of material fact by relying upon the allegations of the complaint alone or by relying upon evidence that is merely colorable rather than significantly probative. Anderson [477 U.S. 242, 91 L. Ed. 2d at 212, 106 S. Ct. 2505].

On the other hand, the Court is precluded from considering credibility or Weight of the evidence and from drawing its own inferences from the evidence. Id. at 216.

The parties essentially do not dispute the facts of this case. They are as follows: In July of 1984, a man named Richard P. "Tex" Miller assaulted the plaintiff's decedent, Kathleen Dodosh, allegedly to an extent that she required hospitalization. Miller assaulted the plaintiff again in her hospital room. The Allentown Police Department did not receive a report of either incident.

Subsequent to our decision on the defendants' motion to dismiss, we became aware of a number of additional cases which we believe merit discussion prior to addressing the defendants' summary judgment motion as to the plaintiff's due process claims.

The Seventh Circuit Court of Appeals in Walker v. Rowe, 791 F.2d 507 (7th Cir. 1986), was faced with a due process claim similar to that asserted by the plaintiff here. In Walker, prison guards and the estates of deceased guards brought actions against officials of the Illinois Department of Corrections claiming that the defendants had deprived the injured and deceased guards of their due process rights by failing to provide them with safe working conditions. In rejecting the plaintiffs' claims, the court stated that:

The level of safety to be provided by the police to the people . . . is determined by political and economic forces, not by juries implementing the due process clause.

792 F.2d at 509. (Emphasis in original).

The First Circuit Court of Appeals in a case even more analogous to the case sub judice similarly stated that:

The (F)ourteenth (A)mendment . . . does not protect against the deprivation of life by any person at all, but only against the deprivation of life by the state without due process. Where, as in these circumstances, the victim dies at the hands of a private individual who was neither an agent of the state nor employed by the state, can it be said that the state deprived her of life without due process? If not, there was no violation of the (F)ourteenth (A)mendment, even though the failure of state officials to protect the victim contributed to her death.

The theme of the cases cited above is that the Fourteenth Amendment's Due Process Clause does not impose upon the states an obligation to provide their citizens with public services, more specifically, adequate police protection. Concomitant with this theme is the general rule of law that a state, or a political subdivision thereof, cannot be held liable under the Due Process Clause, through § 1983, for its failure to provide such protection. See Dudosh v. City of Allentown, 629 F. Supp. at 583. As with most, if not all, rules of law, however, there are exceptions to the general rule.

Here, the plaintiff alleges in his complaint and asserts in his memorandum in opposition to the defendants' motion for summary judgment that the individual defendants "took" the decedent upstairs to her apartment and "instructed" her to open the apartment's door and to enter before them while they stood back from the entranceway. (See Plaintiff's Complaint, para. 22, and Plaintiff's Memorandum of Law in Opposition to the Defendants' Motion for Summary Judgment, Paper # 16, p. 13). The plaintiff, however, has failed to adduce any evidence from which a jury could reasonably infer that such was the case; rather, the only inference a jury could reasonably draw from the evidence of record is that the decedent willingly accompanied the police officers to the entrance to her apartment and of her own volition opened the apartment door behind which stalked her murderer. The plaintiff has also failed to present any evidence that the decedent was in any way mentally incompetent. Thus, this does not present a case where the state placed a person in a position of danger only to abandon him.

A large part of our discussion in our prior opinion disposing of the defendants' motion to dismiss was devoted to the relationship between the decedent and the defendants, as alleged in the plaintiff's complaint. Based on the evidentiary record before us and further analysis of the Third Circuit's opinion in Bailey, we do not reach the same conclusion as we did in our prior opinion, i.e., that a "special relationship" of a constitutional dimension existed between the decedent and the defendants, such that a failure by the defendants to adequately protect the decedent from Miller constituted a deprivation of her substantive due process rights.

The "special relationship" rule has its genesis in the Supreme Court's decision in Martinez v. California (Martinez), 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980). In Martinez, the plaintiffs alleged that the defendant state officials had deprived their decedent of her life without due process of law by releasing a parolee, a mentally disturbed, convicted sex offender, who had been imprisoned with a recommendation that he not be paroled, when the state officials knew or should have known that his release created a clear and present danger that he would commit another violent crime, viz., the murder of the plaintiffs' decedent, a fifteen year old girl. In sustaining the state trial court's dismissal of the plaintiffs' § 1983 action, the Supreme Court concluded that the defendant state officials did not "deprive" the decedent of her life within the meaning of the Due Process Clause and that the victim's death was too remote a consequence of the parole officers' action to hold them responsible under § 1983. The Supreme Court also stated that it need not and did not decide whether a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the paroling of a prisoner. 62 L. Ed. 2d at 489.

Dudosh v. City of Allentown, 629 F. Supp. at 855. Nevertheless, we believe that to conclude that a "special relationship" of a constitutional dimension existed between the decedent and the defendants based on this rationale alone would be to read too much into the Supreme Court's observation in Martinez and too little into the Third Circuit's opinion in Bailey. As stated by the Third Circuit in Bailey, the defendant county, through its employees, had removed the child from the home, taken her into custody, placed her in the protective custody of another relative, and then returned her to the custody of her mother. Thus, it could be said that the state, having removed the child from the "snake pit" once, simply threw her back into the same pit. Further, the court stated that where an agency knows that a child has been abused, "this strengthens the argument that some sort of special relationship had been established". Bailey, 768 F.2d at 511, quoting Jensen v. Conrad, 747 F.2d 185, 195 n. 11 (4th Cir. 1984), cert. denied., 470 U.S. 1052, 105 S. Ct. 1754, 84 L. Ed. 2d 818 (1985) (Emphasis added). We find it significant that the Third Circuit did not state that such knowledge was of exclusive importance ; rather, it appears that it was just one of many factors which the court relied upon in concluding that the plaintiff had alleged sufficient facts upon which a "special relationship" could be found to have existed between the decedent and the defendants. Cf. Escamilla v. City of Santa Ana, 606 F. Supp. 928, 931 (C.D. Cal. 1985), affirmed, 796 F.2d 266 (9th Cir. 1986) ("constitutional duty arises only when the persons acting under color of state law have created a special or custodial relationship or are aware of a special danger with respect to a particular victim "). (Emphasis added).

We do not believe that such knowledge on the defendants' part in this case, by itself, can alone be a basis for a finding of a special relationship of a constitutional nature. Had the plaintiff adduced facts in support of his allegations that the individual defendants indeed "took" the decedent to the apartment door and "instructed" her to open the door and enter before them while they stood back from the entranceway, our analysis, and most likely our conclusion, would have differed. Such action, combined with the defendants' knowledge of Miller's threats to and assaults of the plaintiff's decedent, and his prior weapons violation, might very well have created a "special relationship" analogous to that found in Bailey. However, we need not and do not decide this question, since the plaintiff has completely failed to support his allegations of such conduct by the individual defendants.

Whether it is expressed in terms of a lack of a constitutional duty to protect the decedent on the defendants' part or a lack of proximate cause between the defendants' conduct and the decedent's loss of her life, the individual defendants' conduct did not rise to the level of a deprivation by the defendants of the decedent's right to due process. We believe that to hold otherwise would recognize the fear expressed by Judge Adams in his dissent in Bailey that § 1983 was becoming a federal tort claims act. As stated by Judge Adams,

The First Circuit Court of Appeals succinctly expounded on Judge Adams's fear when it stated that,

A contrary disposition of the plaintiffs' claim would 'trivialize' the Fourteenth Amendment by making every negligent act by a state officer that caused physical injury a constitutional violation. The Supreme Court has rejected reasoning that 'would make the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the State'. Paul v. Davis, 424 U. S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405 (1976).

Williams v. City of Boston, 784 F.2d at 434. Further, and most importantly, the Supreme Court itself has stated that the "Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss or injury to life, liberty, or property", Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662 (1986), since a "lack of due care simply does not approach the sort of abusive government conduct that the Due Process Clause was designed to prevent", Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 669, 88 L. Ed. 2d 677 (1986).

The facts adduced by the plaintiff demonstrate that, even assuming a constitutional duty to protect the decedent existed, which we have concluded it did not, the conduct of the individual defendants was, at most, negligent. Based on the foregoing discussion, they cannot, therefore, be deemed to have violated the decedent's Fourteenth Amendment right to due process. Nor can the fact that the Commonwealth of Pennsylvania, through its Legislature, has chosen to immunize the defendants for such conduct, i.e., negligent acts and/or omissions, under the State's own tort law, alter our decision.
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For these reasons, we must grant the defendants' motion for summary judgment as to the plaintiff's Due Process claim.
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B. The Equal Protection Claim.

i. The Merits of the Claim.

The defendants have also moved for summary judgment as to the plaintiff's denial of the equal protection claim asserted under both §§ 1983 and 1985(3). Unfortunately, counsel for both parties have largely failed to address the major points on this issue and we, as a result, have been left unaided by their memoranda in support of their positions.

The (E)qual (P)rotection (C)lause of the (F)ourteenth (A)mendment guarantees to every person within the United States the right to equal protection of the laws. U.S. Const. amend 14. This clause applies to the activities of police agencies, and protects persons from irrational discrimination in either acts of commission or omission . . . Police officials cannot refuse to protect a particular class of persons, when under the same or similar circumstances they would protect others, without a rational reason for doing so.

643 F. Supp. at 576-577. Although, as stated earlier, there is no general constitutional right to police protection, adequate or otherwise, the state may not, when it chooses to do so, discriminate in providing such services.

Examining the record before us, we believe that the plaintiff has adduced enough evidence from which a juror could reasonably conclude that the individual defendants discriminated against the decedent, either on the basis of her sex or the nature of her complaint, in the manner in which they handled her request for assistance. The depositions of various members of the Allentown Police Department contain numerous statements from which such an inference could be made. For example, Gerald Monaghan, Assistant Chief of the Allentown Police Department, at his deposition, testified in part as follows:

Q: . . . Now, if you received a call for an unwanted person and it turned out that the person was not known by the property owner or the complainant, would the manner of apprehension, would the manner of treatment towards the safety of the property owner differ?

. . .

A: It wouldn't be an unwanted person, in that case it would be a burglar.

Q: How would the manner of apprehension and the safety considerations for the property owner differ?

. . .

A: In that case that would come in or it would be perceived as a felony in progress.

Q: Tell us the difference in procedure.

A: Our policeman as I think I explained before would proceed with extreme caution, may or may not have the guns drawn and probably would be prepared or perhaps anticipate the worst case scenario.

A: In a situation like that with the felon unknown to the complainant, we would approach the building alone.

Q: You would not allow the property owner to go up to the door, open the door and be exposed to the intruder?

. . .

A: No.

(Deposition of Gerald Monaghan, Appendix I, pp. 13-15).

Samuel Solivan, a patrolman with the Allentown Police Department, testified in a similar vein in the context of questioning regarding his investigation of an incident in which Miller had broken into the decedent's apartment. The following excerpt illustrates the thrust of the relevant testimony:

Q: Are you aware of whether he was ever pursued and arrested as a result of that incident?

A: No, he was not because if he was I would have been the arresting officer.

Q: Now why wouldn't he have been arrested?

A: Why wouldn't he have?

Q: Yes, if he broke into the apartment in violation of the order.

A: I don't know. Probably because we couldn't find him. On my incident we couldn't find him. We checked his residence and we had a description of the car and we just couldn't find him.

Q: That night?

A: Yes, precisely.

Q: But you could have issued a warrant and then picked him up subsequently?

A: I guess we could have.

. . .

Q: For example, to compare that with a burglar who would break into an apartment and run away, that person would be pursued through arrest warrants and investigations until apprehended?

A: That's correct.

Q: The same policy was not in effect with respect to violators of Protection Against Abuse Orders?

A: The law is clear when it comes to criminal versus something that's more domesticated.

. . .

Q: Just to make this clear, the case in which you decided to take no further action and pursue to arrest was a situation where you determined there was evidence that he had broken into the apartment and was in violation of the order and was away when you arrived. He couldn't be found that night?

A: The only evidence I had was her word.

Q: You have on other occasions I assume in your experience as a police officer brought arrests on information received from others?

A: True, correct.

Q: That's a common way of bringing an arrest; is it not?

A: If you're pretty sure the victim is going to show up for the hearing.

The Chief of Police of the Allentown Police Department testified as follows at his deposition:

Q: One further question and I'll let you go. If the police had arrived and determined there was an intruder who did not know Kathleen Dudosh, a total stranger, would that have called for any different procedures in the manner of apprehending the intruder?

. . .

A: What would have then been reported to us would not have been a domestic call but conceivable (sic) a burglary in progress. burglary in progress calls are handled differently then (sic) domestic calls.

Q: And what then would be the best way to protect the person against confrontation by the intruder?

. . .

A: Just by attempting to remove them from any hazards that may be encountered. We don't allow -- if it's a burglary in progress that's a police operation, and a police operation is entirely different than handling a domestic call where it's a spousal abuse-type situation. You're trying to draw a relationship between the two and that's impossible.

Q: We don't have a spousal situation here, Chief, in this case.

A: Okay. I'll say this, you're trying to draw a parallel between a police operation relating to or responding to a burglary in progress and a domestic call and there isn't any relationship. Burglars are generally unknown people. Domestic disturbances we're dealing with someone who we know, at least we don't know, the complainant knows most of the time who is causing it.

(Deposition of David M. Howells, Sr., Appendix V, pp. 27-30).

As stated above, we believe that a jury could, based on the evidence of record, as illustrated by the passages of deposition testimony quoted above, reasonably infer that the Allentown Police Department adhered to an administrative classification, i.e., the sex of the complainant, the nature of the complaint, or both, in the handling of requests for assistance which violated the Equal Protection Clause of the Fourteenth Amendment.
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See, e.g., Thurman v. City of Torrington, supra. We hasten to add, however, that this is not the only inference which may be drawn from the evidence of record, nor is it the inference which this Court would necessarily draw. In fairness, the record contains an equal or greater amount of evidence that the police officers of the defendant municipality provided equal protection to all of Allentown's citizens, regardless of their sex or the nature of their complaints. (See, e.g., deposition of David M. Howells, Sr., Appendix V, p. 30). It is for a jury, not this Court, to weigh the evidence and reach a verdict.

ii. Qualified Immunity.

As well as arguing that they are entitled to qualified immunity as to the plaintiff's due process claim, we assume that the individual defendants assert the same argument as to the equal protection claim since they fail in their motion for summary judgment to distinguish between the two claims. We reject this argument. The decedent's constitutional right to equal protection of the laws was probably the most clearly established constitutional right she possessed at the time of her death. Thus, it is clear that the individual defendants are not entitled to qualified immunity as to the equal protection claim. See, e.g., Mitchell v. Forsyth, supra.

iii. The Liability of the Municipal Defendant.

The municipal defendant argues that it is entitled to summary judgment as to the plaintiff's equal protection claim on the ground that the plaintiff has presented no evidence upon which a reasonable juror could conclude that the individual defendants, if they indeed did deprive the decedent of her right to equal protection, acted pursuant to a municipal policy or custom established by the City, a prerequisite for the imposition of liability upon a municipality under the Supreme Court's decision in Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

The plaintiff has set forth two theories upon which the municipal defendant should be held liable. The first is that the individual defendants were acting pursuant to a policy approved, encouraged and acquiesced in by the City. Liability premised on this theory clearly satisfies the requirements of Monell. It is indeed true that the plaintiff has adduced no evidence that the City had promulgated a written policy administratively classifying complaints received by the police department and prescribing the appropriate responses thereto. Such a written policy is not required however. A municipality may be found to have adopted a policy through silence as a result of its failure to sanction its employees for a pattern of conduct on their part of which municipal policymakers are aware. Stated in another manner, a municipality cannot "acquiesce" in a pattern of conduct by its employees, and then be heard to say that those employees were not acting pursuant to municipal policy. See, e.g., Mariani v. City of Pittsburgh, 624 F. Supp. 506 (W.D. Pa. 1986).

Here, the testimony contained in the depositions of record demonstrates that a written report was prepared each time a police officer responded to a citizen's complaint, and that the report contained a description of what happened and how the officer responded. There is testimony that these reports were submitted to and reviewed by the officer's superiors. Finally, there is testimony by at least one officer that he has never been criticized by his superiors for the manner in which he handled a complaint, including citizen complaints of a domestic nature. (See deposition of Daniel Warg, Appendix VI, p. 26). Based on this testimony, we find that the plaintiff has presented enough evidence to create a genuine issue of material fact as to whether the individual defendants acted pursuant to municipal policy, a policy created perhaps by acquiescence and thus more appropriately described as custom, such that it can be said that such policy or custom caused, i.e., was the "moving force" behind or had an "affirmative link" with, a violation of the decedent's right to equal protection. See, e.g., City of Springfield v. Kibbe, 480 U.S. 257, 107 S. Ct. 1114, 94 L. Ed. 2d 293 ( 1987) (O'Connor, J., dissenting).

The plaintiff also seeks to hold the municipal defendant liable under § 1983 based on its alleged failure to properly train the individual defendants. Such a theory of liability has proved a continuous sticking point for many district and circuit courts.
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It was hoped that this very term the Supreme Court would definitively address this issue when it granted certiorari last year in a case for the stated purpose of "resolv(ing) whether a city can be held liable under 42 U.S.C. § 1983 for providing inadequate police training and, if so, what standard should govern the imposition of such liability". Id. at 1. Unfortunately, the Supreme Court subsequently dismissed the writ as having been improvidently granted. Id.; see also, Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 n.7 (1985). Further, our own Circuit Court has failed to definitely address this precise question. See, e.g., Freedman v. City of Allentown, 651 F. Supp. 1046 (E.D. Pa. 1987).

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